The opinion of the court was delivered by: GERARD E. LYNCH, District Judge

OPINION AND ORDER

Alejandro Lopez, an inmate at Greenhaven Correctional Facility,
petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
He argues that he received ineffective assistance of counsel at his state
trial and that Justice Leslie Cracker Snyder, who presided at that trial,
should have recused herself because of her alleged participation in
certain pretrial investigative activities. For the reasons that follow,
the petition will be denied.

BACKGROUND

On November 17, 1988, a New York jury convicted Lopez of criminal
possession of a controlled substance in the first degree, N.Y. Penal Law
§ 220.21, and conspiracy in the second degree, id. § 105.15,
crimes for which he was sentenced to consecutive terms of incarceration
of, respectively, twenty  five years to life and eight and one
 third to twenty  five years. At trial, the State presented evidence to show that between 1985 and 1987, Lopez
controlled a narcotics trafficking and distribution ring known as the
"Rock Organization," which sold glassine envelopes of crack 
cocaine labeled "Rock," "Solid" or "Rock Solid," in the vicinity of 507
East 11th Street in Manhattan. (Resp. Br. 4-5.) Then  New York
City police officers Frank Bose and Bob Barchiesi played the chief roles
in the investigation that culminated in Lopez's conviction, and in 1992,
they published a book about the case entitled Rock Solid.*fn1
(Lopez's arguments refer frequently to this book.) The investigation
continued for several years and involved numerous incidents ancillary to
Lopez's offenses of conviction. Only facts relevant to the present
petition will be recited here.

I. The Search of the Loft

On August 21, 1985, a federal magistrate judge issued a warrant to
search the fifth floor apartment of 405 Greenwich Street in Manhattan
("the Loft"). (Pet., Ex. I.) Lopez contests the factual basis for and
validity of the warrant, and the evidence before the Court fails to
disclose or make clear several important facts relevant to the somewhat
atypical circumstances of its issuance. Despite being the principal
police investigators with knowledge of Lopez's Rock Organization, neither
Bose nor Barchiesi signed the affidavit presented in support of the
search warrant; and despite the apparent absence of a relationship
between the Loft and any ongoing federal investigation, the warrant
application was presented to a federal magistrate without, at least insofar as the record discloses, the participation of a
prosecutor, state or federal.*fn2 Patrick Marshall, whom Lopez
identifies as a policeman designated to work on a state  federal
narcotics task force (Pet ¶ 24), prepared the warrant affidavit (Pet,
Ex. I.)

Marshall's affidavit avers that he spoke with two confidential
informants, CM and CI  2. CI  1 told Marshall that (1) he
had numerous contacts with a cocaine distribution organization, which
tried to recruit him on several occasions; (2) in June 1985, he saw
cocaine and assorted narcotics paraphernalia in the Loft; (3) through his
observations of and conversations with members of the organization, he
became aware of the trademark manner in which the organization packages
and distributes cocaine; (4) "on August 19, 1985, [he] saw two members of
the organization leaving [the Loft] carrying packages which appeared to
contain cocaine"; and (5) the organization sells cocaine labeled "Solid"
in the vicinity of 507 East 11th Street in Manhattan. (Id. ¶¶ 1-3.)

CI  2 told Marshall that (1) on or about June 1, 1985, while
present in the hallway outside the Loft, members of the organization
tried to recruit him "to aid the sale of cocaine"; (2) on two prior
occasions, while present in the Loft, he observed large quantities of
cocaine stored in shoe boxes situated in an area referred to by a member of the
organization as the "office"; and (3) the office held a safebox
containing cash and cocaine, which CI  2 saw a member of the
organization put inside the safebox. (Id. ¶ 4.)

Marshall also testified that "through independent investigation," he
learned that one Raul Feliciano, a member of the organization, had been
charged in a New York State complaint with a felony murder related to
narcotics trafficking. On August 20, 1985, New York City police officers
saw Feliciano "posing as a blind man" outside of 405 Greenwich Street, as
well as "another member of the organization." Feliciano shouted something
to the other member, and "three other men and a woman exited 405
Greenwich Street, joined [him, and] hurriedly entered an automobile,"
which "began driving in an evasive manner." The police arrested them.
(Id. 15.)

Rock Solid does not mention Marshall. Bose and Barchiesi
relate that they initially brought Irma Garcia (a/k/a "Blondie") and
Raphael Martinez (a/k/a "Juahito"), a married couple that sold a brand of
cocaine called "Pony  Pak," id. 32, to a meeting with a number of
state prosecutors. Id. 52. The prosecutors listened to the witnesses, and
then one of the prosecutors said, "Everything here is hearsay, not
admissible in a state court," an appraisal with which the others agreed.
Id. 53. Another prosecutor characterized the evidence as "stale." Id.
Frustrated by the prosecutors' refusal to help them, Bose and Barchiesi
spoke with John McCormack, a police officer "deputized to seek a warrant
through the federal courts," and in the early afternoon, "they received
word that a search warrant for the [Loft] had been issued." Id. 54.

Rock Solid's account thus suggests that all of the evidence
in support of the warrant had been gathered by August 21, 1985, the same
date on which, in the morning, Bose and Barchiesi had their unsuccessful meeting with state prosecutors, and in the
early afternoon, received word that a federal court had issued the
warrant. Indeed, Chapter Seven, which describes these events, is
subtitled "August 21, 1985." Id. 52. But the District Attorney disputes
this chronology. In a brief dated June 14, 2000, filed in response to
Lopez's motion to vacate his sentence pursuant to N.Y. Crim. Proc. Law
§ 440.10, the District Attorney asserted:

Bose and Barchiesi met with ADAs [at] the Office of
the Special Narcotics Prosecutor on August 16,
1985, not August 20. The Warrant was not signed
until August 21, 1985. Thus, the police officers
had several days to investigate the Rock
Organization further before the Warrant was issued.
This is borne out by the supporting affidavit
itself. The affidavit references information
related to events occurring on August 18 
20.

(Pet., Ex. D at 39 n. 10.) Other evidence before the Court  in
particular, hearing transcripts of proceedings related to the District
Attorney's prosecution of Lopez's brother Eduardo  suggest that
Bose and Barchiesi arrested Garcia and Martinez on August 15; that
the police interviewed them separately; that under interrogation,
Garcia and Martinez made certain statements against penal interest;
that their statements corroborated one another, that they served
as confidential informants from August 15 to 21; and that the
police independently corroborated at least some of the factual
details, including those related to criminal activity, provided by
Garcia and Martinez. (Pet. Ltr. dated Oct. 9, 2002, App.; Resp. Ltr.
dated Oct. 30, 2002, Annex.) Moreover, in one of the transcripts,
Bose testifies that "Garcia and Martinez were taken in before the
[federal] district court, reaffirmed their information and the
warrant was issued." (Resp. Ltr. dated Oct. 30, 2002, Annex at 12.)
Many of these facts, if verified, would bear significantly on the
warrant's validity. This evidence will be reviewed, to the extent
relevant, in connection with the discussion below. On the strength of Marshall's affidavit, then  Magistrate Judge
Leonard Bernikow issued a warrant authorizing a search of the Loft for
narcotics, narcotics paraphernalia, and records or proceeds of narcotics
transactions. (Pet., Ex. I.) When the police executed the warrant, they
recovered four and three  eighths ounces of cocaine, assorted
narcotics paraphernalia, firearms, financial records of the Rock
Organization's cocaine sales, and paperwork bearing Lopez's name and
address, including his lease and various utilities bills. (Resp. Br.
7-8.) Largely on the basis of this evidence, a jury convicted Lopez of
criminal possession of a controlled substance in the first degree. (Pet.
¶ 4.) While the State presented ample additional evidence of Lopez's
guilt of the conspiracy charge, Lopez's conviction for the possession
charge, which carried the more severe sentence of twenty  five
years to life, depended fundamentally on the fruits of the warrant. (Id.
¶¶ 4, 28.)

II. Alleged Judicial Impropriety

Then  New York State Supreme Court Justice Leslie Crocker Snyder
presided at Lopez's trial. Lopez alleges, again relying principally on
purported facts derived from Rock Solid, that in "the two years
leading up to [his] arrest, [Bose and Barchiesi] consulted Judge Snyder
about this investigation, and she gave them advice and provided
assistance to help them build their case." (Pet. ¶ 16.) According to
Lopez, Bose and Barchiesi "repeatedly consulted, and were aided in their
investigation by, Judge Snyder." (Id. ¶ 8 3.) Only two passages in
Rock Solid, however, conceivably support this allegation.

The first recounts Bose and Barchiesi's decision to fly to Puerto Rico
themselves, in their personal capacity and without formal police
authorization, to arrest Lopez. Rock Solid 236-38. At that
time, according to Rock Solid, Bose and Barchiesi decided
"that, rather than be accused of running a totally clandestine operation, they would notify
everyone and anyone who was not in a position to stop them. That
translated to anyone outside of the job who did not have the will or the
authority to sabotage their plans." Id. 238. This group included Justice
Snyder. Rock Solid says nothing, however, about consultations
or participation by Justice Snyder in this or any other aspect of the
investigation; only that Bose and Barchiesi informed her, as an
individual "who was not in a position to stop them," of their intention
to travel to Puerto Rico. to arrest Lopez.

The second passage describes Justice Snyder's alleged response upon
learning that Lopez had been taken into custody in Puerto Rico, but not
extradited because of certain turf and public relations battles among
federal, New York, and Puerto Rican law  enforcement agencies. At
that time, Rock Solid relates, Barchiesi notified, among
others, "ADA Patrick Conlon and Judge Leslie Crocker Snyder, both of whom
responded without hesitation." Id. 260. Rock Solid does not
make explicit the nature of Justice Snyder's "respon[se]," but Barchiesi
and Bose relate that, shortly thereafter, they received offers of
assistance from various law  enforcement agencies. Id. 260-61.
Again, Rock Solid does not indicate the Justice Snyder
did anything to assist or advise the investigating police
officers. In her disposition of Lopez's post  conviction motion
pursuant to N.Y. Crim. Pro. Law § 440.10, which, like the present
petition, relied heavily on alleged facts and inferences drawn from
Rock Solid. Justice Snyder stated emphatically that she "had
nothing to do with writing the book nor did [she] verify or approve
anything contained in it." (Pet., Ex. F at 3.)

III. Defense Counsel's Preparation for and Conduct at
Trial

While the gravamen of Lopez's Sixth Amendment claim is that his trial
counsel failed to challenge the warrant for the Loft, Lopez makes two
other arguments in support of his claim that he received ineffective assistance of counsel. First, counsel's
opening statement allegedly made promises that he failed to keep 
for example, that he would present evidence to show that Lopez ran a
legitimate business, not a narcotics organization; that he would show
that Lopez did not live on a palatial estate in Puerto Rico; and that he
would present certain witnesses. (Pet. ¶¶ 12, 37-54.) Second, because
of counsel's alleged failure to review certain discovery materials, he
"opened the door" to the elicitation of inflammatory evidence about
threats ascribed to Lopez by the prosecution's chief witnesses, Bose and
Barchiesi, which otherwise would not have been admitted into evidence and
which prejudiced Lopez. (Id. ¶¶ 13, 60-81.) These negligent acts and
errors, Lopez argues, combined with counsel's failure to make a
suppression motion, denied him the effective assistance of counsel
guaranteed by the Sixth Amendment.

IV. Procedural History

On December 13, 1988, Justice Snyder sentenced Lopez to consecutive
terms of incarceration of twenty  five years to life and eight and
one  third to twenty  five years. For reasons not clear
from the record, it took nearly ten years to resolve Lopez's direct
appeal. On November 10, 1998, the Appellate Division affirmed,
People v. Lopez. 682 N.Y.S.2d 127 (1st Dep't 1998), and on
December 28, 1998, the New York Court of Appeals denied leave to appeal.
92 N.Y.2d 1034 (1998) (Bellacosa, J.). Lopez then brought a collateral
attack on his conviction pursuant to N.Y. Crim. Proc. Law § 440.10.
He argued, as he does here, that he received ineffective assistance of
counsel and that Justice Snyder should have recused herself because of
her alleged participation in the investigation culminating in Lopez's
arrest. In view of the latter claim, Lopez asked Justice Snyder to recuse
herself from hearing his § 440.10 motion. (Pet., Ex. C at 43.) By
order of December 7, 2001, Justice Snyder found no basis to recuse
herself and denied the § 440.10 motion on the merits. (Id., Ex. F.) The
Appellate Division denied leave to appeal that decision on
February 14, 2002. (Id., Ex. G.) Lopez filed the present petition for
habeas corpus, raising substantially the same claims as in his §
440.10 motion,*fn3 on April 8, 2002.

DISCUSSION

I. Procedural Objections

As a threshold matter, the District Attorney argues that Lopez's claims
must be dismissed as procedurally defaulted and untimely because the
factual bases for those claims were available to Lopez no later than
1992, and yet he waited until December 1999 to raise them. By failing to
raise his present claims of ineffective assistance and judicial
impropriety at an earlier stage, the District Attorney argues, Lopez
forfeited them (Resp. Br. 31-32 & n.13), and because Justice Snyder
denied Lopez's § 440.10 motion as, inter alia, "untimely"
(Pet., Ex. F at 3), her decision allegedly rests on an independent and
adequate state ground that precludes federal habeas review. (Resp. Br.
29-31.)

Lopez's petition raises questions of fact about events that happened
nearly two decades ago. The allegedly defective warrant issued in 1985;
Lopez's trial took place in 1988. Given the length of time that has
passed, the Court finds the District Attorney's claim of unfair prejudice
compelling. Indeed, Irving A. Anolik, Lopez's trial counsel, testifies
that he does not recall ever having seen the warrant until Lopez's habeas counsel brought it to
his attention (Pet., Ex. K), an assertion as difficult to credit as it is
to disprove, and one which makes it a relatively simple task for habeas
counsel to characterize Anolik's failure to move to suppress the warrant
as ineffective assistance: "Mr. Anolik must have received the warrant and
either neglected to read it, or read it and refused to make the effort of
drafting a motion and litigating a suppression hearing because he was
dissatisfied with his financial arrangements." (Pet. Ltr. dated Oct. 9,
2002, at 1.) Furthermore, records that may have cast light on the
circumstances of the warrant's issuance have been lost or misplaced.
(Pet., Ex. D at 35.) In particular, the record of the warrant proceedings
should have disclosed whether, as Bose once testified (Resp. Ltr. dated
Oct. 30, 2002, Annex at 12), the confidential informants relied upon by
Marshall restated their information under oath before Magistrate Judge
Bernikow. But the Court's order unsealing that record proved unhelpful,
for it cannot now be located. (Resp. Ltr. dated Dec. 3, 2002.)

Despite these evidentiary difficulties and the potential prejudice to
respondent, the Court is constrained to overrule the District Attorney's
laches and procedural default objections. With respect to procedural
default, a federal court may not issue the writ where a state court's
denial of a claim rests on an independent and adequate state  law
ground, including failure to follow a state procedural rule requiring
such a claim to be raised in a certain manner lest the defendant forfeit
that claim. Coleman v. Thompson. 501 U.S. 722, 729-32 (1991).
But the adequacy of an alleged state procedural bar is itself a question
of federal law, Lee v. Kemna, 534 U.S. 362, 375 (2002);
Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir. 1999), and "a [state]
procedural bar will be deemed Adequate' only if it is based on a rule
that is `firmly established and regularly followed' by the state in
question." Id., quoting Ford v. Georgia, 498 U.S. 411, 423-24
(1991). Here, the District Attorney argues that Justice Snyder denied Lopez's
collateral claims on the independent and adequate state  law
ground that Lopez failed timely to raise them. (Resp. Br. 30-31; Pet.,
Ex. F at 3.) N.Y. Crim. Proc. Law § 440.10(3)(a) provides:

3. Notwithstanding the provisions of subdivision
one, the court may deny a motion to vacate a
judgment when:

(a) Although facts in support of the ground or
issue raised upon the motion could with due
diligence by the defendant have readily been made
to appear on the record in a manner providing
adequate basis for review of such ground or issue
upon an appeal from the judgment, the
defendant unjustifiably failed to adduce such
matter prior to sentence and the ground or issue in
question was not subsequently determined upon
appeal. This paragraph does not apply to a motion
based upon deprivation of the right to counsel at
the trial or upon failure of the trial court to
advise the defendant of such right[.]

By its terms, this subsection applies neither to matters that could
not have been adduced "prior to sentence" nor to "a motion based upon
deprivation of the right to counsel," presumably including a motion based
on ineffective assistance of counsel. The New York Court of Appeals'
decision in People v. Friedgood, 58 N.Y.2d 467 (1983), which
the District Attorney cites in support of the procedural default
argument, involved claims of prosecutorial misconduct made more than
three years after trial, where petitioner "failed to show that he used
due diligence in adducing [facts in support of this claim] prior to
sentencing." Id. at 471. Facts in support of a claim of ineffective
assistance of trial counsel, by contrast, generally cannot be adduced
before sentence; in the usual case, as here (Pet. Reply 19), the
petitioner will at that stage still be represented by trial counsel, and
no record of counsel's alleged errors or omissions will be available. In
general, post  judgment attacks on trial counsel's assistance
should therefore be made by a motion pursuant to N.Y. Crim. Proc. Law
§ 440.10. See People v. Brown, 45 N.Y.2d 852, 853-54 (1978) ("[I]n
the typical case it would be better, and in some cases essential, that
an appellate attack on the effectiveness of counsel be bottomed on an
evidentiary exploration by collateral or post  conviction
proceeding."); People v. Brown. 28 N.Y.2d 282, 287 (1971)
(determination of ineffective assistance generally does "not lie within
the compass of appellate review by a court limited to properly preserved
questions of law"); see also People v. Gilbert, 745 N.Y.S.2d 155,
157 (1st Dep't 2002); People v. Lemma, 711 N.Y.S.2d 3, 3-4
(1st Dep't 2000) (both holding that ineffective assistance claims
properly should be raised by a post  conviction motion pursuant to
§ 4 40.10).

Justice Snyder nonetheless denied Lopez's § 440.10 claims in part
as untimely (Pet., Ex. F at 3), arguably barring habeas relief under the
independent and adequate state ground doctrine. See Coleman.
501 U.S. at 729-30. But her decision does not explain the legal basis for
a finding of untimeliness, except to incorporate by reference the
arguments made by the District Attorney in opposition to Lopez's motion.
Indeed, Justice Snyder's finding consists of one line in a four 
page decision that also addresses the merits of Lopez's arguments:
"Second, this court agrees with the People, (see pages 33  36 [of
the State's brief]) that the defendant's motion is untimely." (Pet., F at
3.) That brief, however, fails to disclose an independent and adequate
state ground on which the court's legal conclusion of untimeliness could
rest. It cites People v. Friedgood. 58 N.Y.2d 467 (1983), which
is inapposite for reasons already stated, and People v.
Jackson. 699 N.Y.S.2d 40 (1st Dep't 1999), for the proposition that
"[a] 440.10 motion may not be used to take a belated appeal on an issue
that appears on the face of the record." Id. at 41. Jackson is
also inapposite because, as explained above, an ineffective 
assistance claim generally cannot be brought on a direct appeal based "on
the face of the record." The legal basis for Justice Snyder's finding of untimeliness is
therefore unclear, and her decision addresses the merits. (Pet., Ex. F at
3.) The Appellate Division denied leave to appeal. Under Harris v.
Reed. 489 U.S. 255 (1989), "a procedural default does not bar
consideration of a federal claim on either direct or habeas review unless
the last state court rendering a judgment in the case "clearly and
expressly' states that its judgment rests on a state procedural bar." Id.
at 263. In applying this rule, the mere existence of, or a passing
reference to, a state procedural bar does not necessarily qualify as a
clear and express statement; `the state court must actually have relied
on the procedural bar as an independent basis for its disposition."
Caldwell v. Mississippi. 472 U.S. 320, 327 (1985); cf.
Jones v. Stinson, 229 F.3d 112, 118 (2d Cir. 2000) (mere
recitation of factual predicate for procedural default, without an
express finding of such default, insufficient to bar federal habeas
review). While Justice Snyder denied Lopez's § 440.10 petition in
part as "untimely," her decision, including the legal authority and
arguments incorporated by reference to the District Attorney's brief,
does not cite a state ground adequate to support such a finding. Because
"the last state court rendering a judgment" did not "clearly and
expressly" state that its decision rested on a state procedural ground
 that is, a finding that Lopez failed timely to raise his present
claims under a state procedural rule "firmly established and regularly
followed by the state in question," Garcia. 188 F.3d at 77
(internal quotation marks omitted)  the independent and adequate
state ground doctrine does not bar the Court's consideration of
Lopez's claims. See Harris, 489 U.S. at 263.

The District Attorney also suggests in a footnote that the "equitable
doctrine of laches applies in habeas cases" and debars the Court's
consideration of Lopez's habeas petition because delays in bringing that
petition "have prejudiced the state's ability to answer the petition."
(Resp. Br. 32 n.13.) Rule 9(a) of the Rules Governing Section 2254 Cases
in the U.S. District Courts permits a district court to dismiss
a habeas petition "if it appears that the state of which the respondent
is an officer has been prejudiced in its ability to respond to the
petition by delay in its filing." See, e.g., Honeycutt v. Ward.
612 F.2d 36, 41-43 (2d Cir. 1979). This Rule, adopted in 1976, codified
the equitable doctrine of laches, see id. at 41, at a time
before the enactment of the Anti  Terrorism and Effective Death
Penalty Act of 1996, which imposes a one  year statute of
limitations on federal habeas petitions. 28 U.S.C. § 2244(d)(1).
While § 2244(d)(1) and Rule 9(a) present theoretically distinct
inquiries, seldom in practice will a timely  filed habeas petition
be barred by the doctrine of laches, for the timeliness of a petition
generally means that the petitioner filed it no more than one year after
he exhausted his state court remedies, as federal law requires. Id. §
2254(b)(1)(A). It would hardly be equitable to penalize a petitioner for
the delay caused by the federal exhaustion requirement, even where that
delay arguably prejudices the state's ability to respond.

Here, the District Attorney does not dispute that under Second Circuit
law, Lopez timely filed his petition within the meaning of §
2244(d)(1)(A). (Resp. Br. 30 n.12.) Had Lopez sought to file his federal
habeas petition before February 14, 2002, when the Appellate Division
denied him leave to appeal Justice Snyder's adverse ruling, the petition
could have been dismissed as unexhausted. True, as the State argues,
Lopez could have filed a post  judgment § 440.10 motion before
the Appellate Division ruled on his direct appeal (Resp. Br. 31), and
earlier presentation of the claims made in the present petition may have
avoided prejudice to the State and facilitated resolution of some of the
evidentiary issues now in dispute. But on the present record, the Court
cannot make independent findings of fact that Lopez unduly delayed filing
the present petition or that any such delay unfairly prejudiced the State's ability to
respond to it.*fn4

II. The Ineffective Assistance of Counsel Claim

A. Constitutional Standard

The Sixth Amendment right to counsel is the right to the effective
assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771
n.14 (1970): see also Evitts v. Lucey, 469 U.S. 387, 395-96
(1985). To establish a violation of this right, a convicted defendant
generally must show that counsel's "representation fell below an
objective standard of reasonableness," and that "but for counsel's
unprofessional errors, the result of the proceeding would have been
different." Strickland v. Washington. 466 U.S. 668, 688, 694
(1984). This is a heavy burden. U.S. v. Diaz. 176 F.3d 52, 112 (2d Cir. 1999). Where, however,
counsel labored under an actual, not merely a potential, conflict of
interest that adversely affected his performance, prejudice need not be
demonstrated; it will be presumed. Strickland. 466 U.S. at 692;
Cuyler v. Sullivan, 446 U.S. 335, 349-50 (1980); Winkler
v. Keane, 7 F.3d 304, 307 (2d Cir. 1993); Strouse v.
Leonardo. 928 F.2d 548, 552 (2d Cir. 1991).

Lopez argues that the Court should apply this less burdensome standard
for establishing ineffective assistance of counsel because Anolik had an
actual financial conflict of interest that adversely affected his
representation of Lopez. To substantiate this allegation, Lopez relies on
Anolik's pretrial motion to be relieved as counsel and on excerpts from
the transcript of Lopez's sentencing. Neither suffices to show an actual
conflict of interest.

Two weeks before Lopez's trial, Anolik asked to be relieved as counsel
because Lopez could no longer afford to pay him; according to Anolik's
affidavit, the relative upon whom Lopez depended to pay his attorney's
fees had died. Anolik testified that Lopez's inability to pay would make
it impossible to pursue "certain essential investigative procedures," "to
purchase certain essential minutes," and "to try th[e] case." (Pet., Ex.
T at 1.) But counsel's mere representation that his client lacks adequate
resources to pay him or to purchase services or materials he deems
essential to his client's defense does not, ipso facto,
establish a conflict of interest The question is whether, as a
consequence of such circumstances, counsel labored under an objective
conflict of interest that subjectively affected his ability to represent
his client. See Strouse, 928 F.2d at 553; see also United
States v. Malpiedi, 62 F.3d 465, 469 (2d Cir. 1995) ("To prove a
lapse in representation [resulting from an actual conflict of interest],
a defendant must demonstrate that some plausible alternative defense
strategy or tactic might have been pursued, and that the alternative defense was inherently in conflict with or not
undertaken due to the attorney's other loyalties or interests.")
(internal quotation marks omitted). While failure to pay attorney's fees
may give rise to "some divisiveness between attorney and client," under
Second Circuit law, the Court "presume[s] that counsel will continue to
execute his professional and ethical duty to zealously represent his
client." U.S. v. O'Neil, 118 F.3d 65, 71 (2d Cir.
1997), and hence, "failure to pay fees or an attorney's motion to
withdraw for his client's failure to pay, without more," does not
establish a conflict of interest. Id.; accord. Caderno v.
U.S., 256 F.3d 1213, 1218 (11th Cir. 2001) (to establish an
actual financial conflict of interest, defendant must show "that his
counsel actively represented his own financial interest during
[defendant's] trial").

Lopez's sole evidence of an actual conflict of interest consists in a
few selective, extra  contextual quotations from the record
alluding to a possible failure to pursue an alibi defense for "budgetary
reasons." (Pet. ¶ 57-58.) These do not in any way suggest that Anolik
abdicated his professional duty to represent Lopez zealously because of
his financial interests,*fn5 nor, as a matter of law, does Anolik's
application to withdraw as counsel. O'Neil, 118 F.3d at 71. And
in any event, Justice Snyder responded to Anolik's application by
appointing him to represent Lopez pursuant to N.Y. County Law § 18b
and assuring him that the court would pay reasonable investigation fees
and other expenses necessary to the preparation of Lopez's defense.
(Resp. Br. 36-37.) The record is devoid of evidence to support
petitioner's claim that Anolik "seemed to feel . . . that his failure to discharge his responsibilities
was somehow justified by his dissatisfaction with his fee." (Pet. Reply
6.) In fact, Anolik ultimately waived personal compensation for his
services.*fn6 (Resp. Br. 38.) Lopez's assertion that Anolik labored
under a financial conflict of interest that caused a lapse in
representation is therefore speculative at best. His ineffective
assistance claim is properly appraised under the general two 
prong standard set forth in Strickland: He must show that
Anolik's performance fell below an objective standard of reasonableness,
and that but for that deficient performance, the outcome of the
proceedings against him would have been different.

B. Standard of Review on Habeas

A federal habeas court cannot grant relief based on "any claim that was
adjudicated on the merits in State court proceedings unless the
adjudication of the claim . . . resulted in a decision that was
contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United
States." 28 U.S.C. § 2254(d); see Williams v. Taylor,
529 U.S. 362, 412-13 (2000) (Opinion of O'Connor, J.). The District Attorney
observes, and Lopez does not dispute, that Justice Snyder "adjudicated"
Lopez's ineffective assistance of counsel claim "on the merits." (Resp.
Br. 35-36.) While Justice Snyder correctly cited Strickland as governing
law (Pet., Ex. F. at 2), her opinion appears to apply New York's distinct
standard for assessing ineffective  assistance claims. (Id.) The
New York constitutional standard, see People v. Baldi,
54 N.Y.2d 137, 147 (1981), however, is not "contrary to" the federal
constitutional standard set forth in Strickland.*fn7 Eze v.
Senkowski, 321 F.3d 110, 122-24 (2003). A New York court therefore
"adjudicates" a federal ineffective  assistance claim "on the
merits" if it applies or simply cites Baldi. See Eze, 321 F.3d
at 123-24; Lindstadt v. Keane, 239 F.3d 191, 198 (2d Cir. 2001)
(citation to Baldi. without discussion, held to be an
"adjudication on the merits" of petitioner's federal ineffective 
assistance claim for purposes of § 2254(d)). Justice Snyder's
opinion, which cites Strickland and Baldi and applies
the latter to reject Lopez's ineffective  assistance claim (Pet.,
Ex. F at 2-3), thus plainly qualifies as an adjudication on the merits.
Accordingly, the Court may not grant Lopez's petition unless the state
court's decision disposing of this claim unreasonably applied
Strickland to the facts of Lopez's case. See
Williams, 529 U.S. at 413 (Opinion of O'Connor, J.).

Justice Snyder denied Lopez's ineffective  assistance claim on
two grounds, finding that neither prong of Strickland had been
established. She held, first, that Anolik's failure to move to suppress
the search warrant for the Loft did not prejudice Lopez because "a motion
to controvert the warrant would have failed"; and second, that
"objective[ly] reasonable strategies exist to explain why defense counsel would have chosen not to controvert the
search warrant."*fn8 (Pet., Ex. F at 3.) To establish his entitlement to
a writ of habeas corpus based on his ineffective  assistance
claim, Lopez must demonstrate that both of these determinations
reflect unreasonable applications of Strickland.

Lopez contends that Anolik rendered ineffective assistance of counsel
principally because he failed to move to suppress evidence obtained
pursuant to the search warrant for the Loft based on "facial
deficiencies" in the warrant affidavit that allegedly would have been
"self  evident to any competent criminal attorney." (Pet. ¶
29.) Had Anolik made that motion, Lopez argues, it would have succeeded,
in which event the cocaine recovered from the Loft could not have been
introduced at his trial, and he therefore would not have been convicted
for first  degree possession of a controlled substance. There is a considerable irony to this claim. Fundamentally, Lopez
argues that the critical evidence underlying the most serious count of
conviction should have been excluded as the fruit of unlawful police
conduct. Yet he does not, and cannot, claim directly that the search, or
the consequent admission of evidence, violated his federal constitutional
rights, for were Lopez to base his claim on the Fourth Amendment's
prohibition of unreasonable searches and seizures, it would not be
cognizable on habeas. See Stone v. Powell. 428 U.S. 465, 481
(1976) ("[W]here the State has provided an opportunity for full and fair
litigation of a Fourth Amendment claim, the Constitution does not require
that a state prisoner be granted federal habeas corpus relief on the
ground that evidence obtained in an unconstitutional search or seizure
was introduced at his trial.")  Moreover, the alleged illegality
of the search is wholly a product of state, not federal, law. As
discussed in more detail below, Lopez does not  and again, cannot
 argue that the warrant authorizing the police to search the Loft
violated the Fourth Amendment, for the warrant application sets forth
sufficient facts from which a reasonable magistrate, applying the
flexible federal standard articulated in Illinois v. Gates,
462 U.S. 213 (1983), could find probable cause. Rather, the motion
Lopez argues should have been made would have relied on New York State
law, which continues to impose special restrictions, long abandoned
as a matter of federal law, on the use of information from
confidential informants in assessing probable cause. Lopez's ineffective
 assistance claim thus becomes a vehicle for asking this Court
to adjudicate, on federal habeas review (where, of course, claims based
on state law are unavailable as grounds for relief), a search 
and  seizure motion based entirely on state law, even though a
challenge to the same search based on federal constitutional
principles would be both non  cognizable and meritless. Notwithstanding these considerations, Lopez's ineffective 
assistance claim based on the failure of trial counsel to move to
suppress the search warrant for the Loft remains cognizable on federal
habeas. The Sixth Amendment confers an independent right to the
assistance of counsel in criminal cases. See Kimmelman v.
Morrison, 477 U.S. 365, 374 (1986) (rejecting "petitioner's
perception of the identity between respondent's Fourth and Sixth
Amendment claims" and observing that "[w]hile defense counsel's failure
to make a timely suppression motion is the primary manifestation of
incompetence and source of prejudice . . ., the two claims are
nonetheless distinct, both in nature and in the requisite elements of
proof'). For this reason, the "restrictions on federal habeas review"
announced in Stone do not apply to Sixth Amendment claims of
ineffective assistance of counsel predicated on counsel's "failure to
file a timely motion to suppress evidence allegedly obtained in violation
of the Fourth Amendment." Id. at 368. Moreover, Lopez's Sixth Amendment
claim remains cognizable on habeas whether the underlying suppression
motion that counsel failed to make would have been based on federal or
state law. Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994)
("The claim whose omission forms the basis of an ineffective assistance
claim may be either a federal  law or a state  law claim,
so long as the failure to raise the state . . . claim fell outside the
wide range of professionally competent assistance.") (internal quotation
marks omitted); Frazier v. Kelly. 112 F. Supp.2d 253, 257
(W.D.N.Y. 1999). The questions therefore remain whether Lopez's trial
counsel's performance "fell below an objective standard of
reasonableness," Strickland. 466 U.S. at 688, and whether "but
for [that failure], the result of the proceeding would have been
different." Id. at 694. In the context of a Fourth Amendment or cognate state  law
claim, Strickland requires an analysis of the merits of the
suppression motion;*fn9 if the motion would have prevailed, the Court
must then ask whether "the verdict would have been different absent the
excludable evidence." Kimmelman. 477 U.S. at 375. Hence,
insofar as Lopez bases his ineffective  assistance claim on
counsel's failure to move to suppress, he can prevail only if (1) a
competent attorney would have moved to suppress the evidence recovered
from the Loft, (2) that motion would have prevailed, and (3) the outcome
of Lopez's trial would for that reason have differed.

Resolution of these issues requires a careful analysis of state law
because the adequacy of counsel's performance, and the consequences of
any dereliction  that is, the merits of Lopez's Sixth Amendment
claim  depend on the substance of state search  and
 seizure law. While this does not mean, as noted, that Lopez has
not advanced a cognizable federal claim, it does mean that a
federal court's deference to the state court's conclusions is doubly
reinforced. By arguing that the state court unreasonably applied
Strickland. Lopez asks this Court not only to reject the
state court's application of Supreme Court precedent, which it is
equally sworn to uphold, Robb v. Connolly, 111 U.S. 624, 637
(1884), but also to reject the state court's conclusions on questions
of state law, about which it possesses far greater expertise. C. Lopez's Projected Motion

1. New York Law on Probable Cause

New York, like federal, law limits review of the validity of a search
warrant to an analysis of "the sufficiency of what is found within the
four comers of the underlying affidavit." People v. Roberts,
600 N.Y.S.2d 582, 583 (4th Dep't 1993), quoting U.S. v.
Taylor, 716 F.2d 701, 705 (9th Cir. 1983): see also People v.
Nieves, 36 N.Y.2d 396, 402 (1975) (facial validity of warrant
dependent on "facts and circumstances . . . known to the issuing
Magistrate"). A warrant is valid if it describes the places to be
searched or items to be seized and is supported by probable cause. Id. at
401-02. While Article I, Section 12 of the New York Constitution protects
citizens against unreasonable searches and seizures in language that
repeats verbatim that of the Fourth Amendment to the U.S.
Constitution,*fn10 the New York Court of Appeals has construed the State
Constitution's language to require a higher threshold showing of probable
cause than federal law requires.

In Illinois v. Gates, 462 U.S. 213 (1983), the Supreme Court held that
because "probable cause is a fluid concept  turning on the
assessment of probabilities in particular factual contexts 
not readily, or even usefully, reduced to a neat set of legal rules,"
courts should apply a totality  of  the 
circumstances analysis in order to evaluate the sufficiency of a
warrant affidavit. Id. at 232. Where a warrant relies on tips from
an anonymous informant, his veracity, reliability, and basis of
knowledge should inform the court's probable cause determination. But
"a deficiency in one may be compensated for, in determining the
overall reliability of a tip, by a strong showing as to the other, or by
some other indicia of reliability." Id. at 233. New York, by contrast,
continues to apply the pre  Gates standard for assessing probable
cause based on tips from an anonymous informant, a standard identified
with the Supreme Court's decisions in Aguilar v. Texas,
378 U.S. 108 (1964), and Spinelli v. U.S., 393 U.S. 410
(1969), both of which Gates overruled. In People v.
Griminger. 71 N.Y.2d 635 (1988), the New York Court of Appeals found
that Gates did not offer "a sufficient measure of protection"
and therefore held "that, as a matter of State constitutional law, the
Aguilar  Spinelli two  prong test should
[continue to] be applied in determining whether there is a sufficient
factual predicate upon which to issue a search warrant." Id. at 639.

Aguilar  Spinelli requires that a warrant
application set forth facts sufficient to establish, first, the veracity
of the informant's tip  that is, some reason to credit it 
and second, the basis of his or her knowledge. `The separate basis of
knowledge and veracity requirements of Aguilar/Spinelli are
analytically independent and each must be satisfied." People v.
DiFalco, 80 N.Y.2d 693, 697 (1993). Unlike under Gates, 462 U.S. at
233, a strong showing in one area cannot compensate for a deficiency in
the other. The first prong of Aguilar  Spinelli can be satisfied
in two ways: by establishing either the informant's
reliability or the reliability of the particular
information at issue. DiFalco. 80 N.Y.2d at 697. An
informant's reliability can be established by, among other indicia,
"past instances of reliability, that the informant provided the
information under oath, [or] that the information provided was
contrary to the informant's penal interest." People v. Burks.
521 N.Y.S.2d 718, 719 (2d Dep't 1987): see also DiFalco. 80 N.Y.2d at
697 & n.2. The reliability of particular information, however, must
be shown by "independent verification of sufficient details of that information." Id. at
697. While such details need not be inherently "criminal in nature,"
neither may they be "merely peripheral to the reported criminal scheme;
they must fit within the informant's story of the contemplated crime as
activities which are significant and essential to carrying it out." Id.
at 699.

Aguilar  Spinelli's second prong, basis of knowledge,
likewise may be satisfied in two ways: First, it suffices if the
informant personally observed or participated in the criminal activity at
issue, for those circumstances diminish the concern that a search or
seizure may proceed based on "knowledge" that turns out to be mere rumor
or an effort to frame the person implicated by the informant's tip.
See People v. Elwell, 50 N.Y.2d 231.234-35 (19801 But under New
York law, where the informant does not reveal the basis of his or her
knowledge, police observation or other corroborative investigation can
only compensate for that deficiency if it establishes "sufficient details
suggestive of or directly related to criminal activity." Id. at 234.
Unlike the reliability standard, that is, the details confirmed by the
police to substantiate an informant's basis of knowledge must strongly
imply criminal activity.

2. The Reasonableness of Counsel's Failure to Move to
Suppress the Warrant

Whether Lopez's trial counsel's failure to move to suppress the warrant
for the Loft fell below an objective standard of reasonableness,
Strickland 466 U.S. at 688, depends on how a reasonable New
York practitioner would have assessed the potential risks and benefits of
such a motion, including its potential merits and possible strategic
reasons to forego it. Bearing in mind the principles of New York law
articulated above and evaluating, for the moment, only "the sufficiency
of what is found within the four corners of the underlying affidavit,"
Roberts. 600 N.Y.S.2d at 583 (internal quotation marks
omitted), it is immediately apparent that, on its face, the warrant affidavit for the Loft satisfies Aguilar 
Spinelli's "basis of knowledge" requirement. Each of the two
confidential informants cited in the affidavit report that they
personally observed cocaine in the Loft. (Pet., Ex. I ¶¶ 1, 4.)

With regard to the "reliability" requirement, however, the affidavit
appears facially defective. It does not state that either informant has a
"track  record," DiFalco. 80 N.Y.2d at 697 n.2, that is,
a history of providing truthful information to the police. Nor does it
appear that the confidential informants made any statements against their
penal interest. While each claimed to have observed cocaine in the Loft,
to have had "contacts" with members of the alleged narcotics
organization, and to have been solicited by those members to join it,
neither admitted to perpetrating any criminal activity themselves.
Finally, the affidavit does not indicate that the informants made their
statements under oath. Because none of the traditional indicia of
informant reliability appear on the face of the affidavit, the question
is whether it provided to the issuing magistrate facts disclosing
independent, corroborative police work sufficient to verify the
particular information furnished by the informants. See id. at
697. It seems doubtful that it did.

The warrant states in a conclusory fashion that the affiant learned
"through independent investigation" that one Raul Garcia Feliciano had
been charged with a felony murder "related to narcotics trafficking."
(Pet., Ex. I ¶ 4.) It does not specify in what that investigation
consisted. Nor does not it indicate that the narcotics trafficking had
any relation to the Loft or the narcotics organization alleged to be
headquartered there. While police officers observed Feliciano, whom they
knew to be a narcotics dealer, and his apparent comrades leave 405
Greenwich Street under arguably suspicious circumstances, it is not clear
how these details corroborate the tips supplied by the two confidential
informants. Feliciano had no known relationship to Lopez or the Rock Organization, and the affidavit does not say that Feliciano
departed from the specific apartment in the multi  unit building
identified by either of the anonymous informants relied on in the
affidavit. The details about Feliciano therefore appear to be, at best,
"merely peripheral to the reported criminal scheme," for they do not "fit
within the informant's story of the contemplated crime as activities
which are significant and essential to carrying it out."
DiFalco. 80 N.Y.2d at 699.

The only other detail that might be thought to corroborate the
information furnished by the confidential informants appears in paragraph
three of Marshall's affidavit, which says that an undercover police
officer bought cocaine in front of 507 East 11th Street. (Pet., Ex. I
¶ 3.) But the affidavit does not say that the cocaine bore the label
"Solid," as one informant suggested it would (id.), and the mere fact
that an undercover officer purchased some cocaine from a location where,
according to the informants, the narcotics organization headquartered at
the Loft also sold its particular brand of cocaine provides little, if
any, corroboration of the informants' allegations about the Loft.
See People v. Feanny, 576 N.Y.S.2d 628, 629-30 (3d Dep't 1991);
Burks, 521 N.Y.S.2d at 720.

The District Attorney argues, however, that as a matter of law, the
reliability requirement of Aguilar  Spinelli is met where, as
here, the affidavit contains information provided by two
informants, and each informant corroborates the other. (Resp. Br. 41.)
Neither party has been able to cite any New York legal authority for or
against this proposition. Lopez notes that the California Supreme Court
rejected it in the context of a warrantless arrest. People v.
Fein, 484 P.2d 583, 587 (Cal. 1971) ("Although there may be
circumstances where corroborative information from separate, unrelated
sources will thereby establish its credibility, nevertheless in the instant case the record fails to show what information each
informer furnished the officers, or whether the information was furnished
independently by each informer/*). The District Attorney responds that
several Eighth Circuit decisions hold to the contrary (Resp. Ltr. dated
Sept. 27, 2002, at 3), although it is far from clear that these cases
establish the proposition that the existence of two anonymous informants
who corroborate one another, without more, establishes reliability under
Aguilar  Spinelli.*fn11 In U.S. v.
McGlynn., 671 F.2d 1140 (8th Cir. 1982), the court held that "a tip
that is insufficient under Aguilar may nevertheless serve as
the basis for a probable cause determination if the reliability of the
tip is corroborated by another independent source, or if the accuracy of
the information is borne out by independent corroboration by the
authorities." Id. at 1145. The warrant affidavit for the Loft does not
indicate the independence of the confidential informants; by the same
token, it does not contain information that would give a magistrate any
reason to the conclude that they were not independent. Finally,
as noted earlier, the warrant affidavit contains few, if any, facts
demonstrating independent corroboration by the authorities, except for
the conclusory statement that the police confirmed the informants' tips
by "independent investigation."

Under these circumstances, the merits of a hypothetical suppression
motion would hardly have been clear to a reasonably competent New York
lawyer at the time of Lopez's trial. See Kimmelman. 477 U.S. at
384 (`The reasonableness of counsel's performance is to be evaluated from counsel's perspective at the time of the alleged error and in
light of all the circumstances."). But the question, at this stage of the
analysis, is not whether a suppression motion would have succeeded, or
even whether it necessarily should have been made; it is whether
counsel's failure to investigate the option, consider its strategic
merits and demerits, and then make an informed decision about it fell
below an objective standard of reasonableness. Enough has been said to
establish that it did, because "counsel has a duty to make reasonable
investigations or to make a reasonable decision that makes particular
investigations unnecessary." Strickland. 466 U.S. at 691. A
reasonably competent New York attorney would have, at a minimum,
investigated the warrant further in light of the affidavit's potential
defects under New York law and considered moving to suppress it. See
Kimmelman, 477 U.S. at 384-85 (finding counsel's failure to file a
timely suppression motion unreasonable under Strickland where,
far from making a strategic decision not to move to suppress after
investigation, counsel remained unaware of the search at issue because he
failed to request pretrial discovery).

Anolik specifically denies that he made a strategic decision to forego
a motion to suppress the warrant for the Loft. (Pet., Ex. K ¶ 9.) He
submits that he never saw the warrant before habeas counsel brought it to
his attention on October 8, 1999. (Pet., Ex. K ¶¶ 5, 7.) Because the
possession charge, which carried the more severe sentence, depended
fundamentally on evidence procured pursuant to the warrant, a reasonably
competent attorney would have obtained and reviewed it. No evidence
suggests, and Lopez does not allege, that the District Attorney
wrongfully withheld the warrant from Anolik.*fn12 Therefore, either
Anolik did not review the warrant, which certainly falls below an objective standard of
reasonableness, or he reviewed it in such a cursory or negligent fashion
that he failed to notice any reason to investigate a potential
suppression motion under New York law, which also falls below an
objective standard of reasonableness.

Reasonable New York lawyers might differ on the merits or strategic
advisability of a motion to suppress.*fn13 But failure to review the
warrant and consider such a motion under New York law unquestionably falls below an objective standard of
reasonableness. Insofar as Justice Snyder denied Lopez's ineffective
 assistance claim on the ground that "objective[ly] reasonable
strategies exist to explain why defense counsel would have chosen not to
controvert the warrant" (Pet., Ex. F at 3), her decision unreasonably
applied Strickland. for in this case the inquiry under federal
law is not whether a hypothetical, reasonably competent attorney may have
had a strategic reason not to make a motion to suppress; it is whether
Lopez's counsel in fact neglected his "duty to make reasonable
investigations or to make a reasonable decision that makes particular
investigations unnecessary." Strickland, 466 U.S. at 691; see
also Kimmelman. 477 U.S. at 384-85.*fn14 Because counsel's
performance in this regard fell below an objectively reasonable standard,
Lopez has met the first requirement of the standard articulated in
Strickland. The Court must therefore examine the second,
whether counsel's deficient performance prejudiced Lopez.

3. Potential Prejudice Due to Counsel's Failure to Make
a Suppression Motion

At the level of prejudice, the Court must determine whether the result
of Lopez's criminal proceedings would have differed "but for counsel's
unprofessional errors." Strickland, 466 U.S. at 694. This counterfactual analysis is particularly complicated
here for two reasons. First, as noted, the facial sufficiency of the
warrant under New York law is unclear: No New York case holds either that
two untested, anonymous informants can or cannot corroborate one another
for purposes of establishing reliability under Aguilar 
Spinelli. Precedents from other jurisdictions, even assuming that
New York would follow them, are inconclusive.

Second, it not clear how a New York court would proceed if faced with a
motion to suppress a warrant validly issued by a federal magistrate
pursuant to federal law.*fn15 On the one hand, Griminger. 71
N.Y.2d at 641, confirms that a New York court trying a defendant for
crimes defined by the New York Penal Law must apply Aguilar 
Spinelli to a motion to suppress evidence seized pursuant to a search
warrant issued by a federal magistrate. This makes sense; otherwise, New
York police officers could circumvent New York search  and 
seizure law by bringing warrants of questionable validity under
Aguilar  Spinelli to a federal magistrate, who would
apply Gates, without fear that a state court would later
suppress evidence seized pursuant to those warrants. On the other hand,
it would seem odd to suppress evidence seized under a warrant validly
issued by a federal magistrate applying federal law where law 
enforcement agents could show that they possessed sufficient evidence to
establish probable cause under the more stringent New York standard and
that such evidence could have been presented to the magistrate had it
been required. In that circumstance a New York court might well afford
the State an opportunity to establish that even if the warrant is facially
insufficient under Aguilar  Spinelli, the State could
have established probable cause under that more structured
standard.*fn16

It remains Lopez's burden, however, to establish prejudice under
Strickland. To do that, he must demonstrate that a suppression
motion would have succeeded.*fn17 Otherwise, trial counsel's failure to make that motion did not prejudice him.
Moreover, as noted in section n(B), Lopez's burden on habeas is even
higher, for the state court, applying New York law, held that "a motion
to controvert the warrant would have failed." (Pet., Ex. F at 3.) Because
that court adjudicated Lopez's Sixth Amendment claim on the merits, to
qualify for habeas relief, Lopez must establish that its determination is
not merely incorrect, but an unreasonable application of Supreme Court
precedent.

On this record, that burden is insurmountable. The success or failure
of the motion at issue, and hence the existence or non  existence
of prejudice under Strickland. turns entirely on questions of
state, not federal, law. Justice Snyder held that as a matter of state
law, "a motion to controvert the warrant would have failed." (Pet., Ex. F
at 3.) No authoritative state precedent requires the rejection of the
District Attorney's argument, which the state court accepted and
incorporated by reference, that the reliability prong of Aguilar 
Spinelli can be satisfied by two confidential informants who corroborate
one another, whether or not they know each other. It cannot be an
unreasonable application of federal law, as embodied in Supreme Court
precedent, for a state court to adopt a particular answer to an unsettled
question of state law. Yet to find that Lopez has established prejudice
undo: Strickland would require the Court to substitute its own
judgment for that of the state court on an unsettled question of purely
state law. Lopez therefore cannot establish that had trial counsel made a
suppression motion, "the result of the proceeding would have been
different." Strickland, 466 U.S. at 694. He cannot, that is,
show that the state court's explicit determination that the result of the
proceeding would have been the same is an unreasonable application of the
prejudice prong of Strickland. D. The Reasonableness of Counsel's Trial Preparation
and Performance

Lopez's remaining ineffective  assistance allegations can be
dealt with more briefly, for they do not withstand scrutiny under the
first prong of Strickland. First, Lopez complains that trial counsel
made promises in his opening statement that he failed to keep  in
particular, that he did not produce certain witnesses or pursue certain
allegedly promising defenses. Second, he argues that counsel's cross
 examination of Bose "opened the door" to prejudicial testimony
about evidence of incendiary threats ascribed to Lopez. Such errors, if
they were errors, may be the basis for an ineffective assistance claim
if they arose from counsel's failure to prepare for trial or abdication
of the duty to provide vigorous representation. See Pavel v.
Hollins, 261 F.3d 210, 216-19 (2d Cir. 2001). But the District
Attorney rightly points out that the record as a whole shows that Anolik
prepared for trial and pursued a coherent, if ultimately unsuccessful,
defense strategy. (Resp. Br. 44-45.) Absent a failure of preparation or
abdication of the duty of representation, decisions to call or not to
call witnesses remain within the discretion of defense counsel.
U.S. v. Schmidt. 105 F.3d 82, 90 (2d Cir. 1995)
(observing that `the tactical decision of whether to call specific
witnesses  even ones that might offer exculpatory evidence
 is ordinarily not viewed as a lapse in professional
representation"); U.S. v. Nersesian,
824 F.2d 1294, 1391 (2d Cir. 1987).

Equally, "[d]ecisions whether to engage in cross  examination,
and if so to what extent and in what manner, are . . . strategic in
nature." Id. To be sure, in hindsight, Anolik's vigorous cross 
examination of Bose, which elicited certain incendiary threats ascribed
to Lopez, almost certainly diminished the jury's sympathy, such as it
may have been, for Lopez. But hindsight is notoriously lucid. The Court
cannot say  on the basis of ex post facto affidavits
purporting to demonstrate the existence of potential alternative defense strategies or
witnesses who may have been, but were not, called to testify (Pet., Exs.
O, S)  that "counsel made errors so serious that [he] was not
functioning as the "counsel' guaranteed the defendant by the Sixth
Amendment." Strickland, 466 U.S.at 687.

II Allegations of Judicial Impropriety

Lopez's second claim, that Justice Snyder should have recused herself
because of her alleged participation in certain pretrial activities, is
utterly without support in the record. Even were it cognizable evidence,
which it is not, Rock Solid does not suggest that Justice
Snyder participated in the investigation of Lopez's activities, still
less that in "the two years leading up to Lopez's arrest, [Bose and
Barchiesi] consulted Judge Snyder about this investigation, and she gave
them advice and provided assistance to help them build their case." (Pet.
¶ 16.) As noted, the book only indicates that Bose and Barchiesi
informed Justice Snyder of their decision to fly to Puerto Rico. in their
personal capacities to arrest Lopez, and that upon hearing of Lopez's
arrest, she "responded without hesitation." Rock Solid 260.

Justice Snyder noted that she had no knowledge of the contents of the
book and did not approve or verify any of its alleged facts. (Pet, Ex. F
at 3.) Nothing in the book states or even implies that Bose and Barchiesi
consulted Justice Snyder or enlisted her assistance. On its face, the
alleged notice to Justice Snyder of the Puerto Rico. trip does not amount
to "consultation." To the contrary, the officers' account indicates that
they in some way notified of their intention precisely those people who
"did not have the will or the authority to sabotage their plans,"
Rock Solid 238  a kind of "blow  by" intended to
provide colorable cover if the officers were later accused of having
taken action on their own, which is, in fact, what they did. No judge
would be expected to respond to such a "notice," nothing in Rock Solid
suggests that Justice Snyder did, and indeed the entire exercise was
predicated on the officers' expectation that she would not. As for the
notification of Lopez's arrest, it is neither surprising nor remarkable
that government officials would notify the presiding judge in a case
that a fugitive defendant had been apprehended. Whatever the officers
may have hoped that such notification might achieve by way of resolving
their jurisdictional battles with other agencies, nothing in the book
 let alone any actual evidence  provides any reason to
believe that Justice Snyder took any improper action, or any action at
all, in response to the alleged call. That "wheels began to turn,"
Rock Solid 260, after the officers called everyone they knew
does not support an inference that the judge involved herself in the
investigation.

Lopez cites no evidence in the transcript or elsewhere in the record
that conceivably substantiates his allegations of judicial bias or
disqualifying ex parte contacts, and the precedents he cites in
support of this claim involved serious misconduct that had been
established by the evidence, not unjustified speculation based on
ambiguous quotations taken from a "true crime" book of questionable
accuracy. See, e.g., Bracy v. Gramley,
520 U.S. 899 (1997) (judge who convicted defendant subsequently himself
convicted of bribery); Lo  ji Sales, Inc. v. New York,
442 U.S. 319, 327 (1979) (judicial officer ruling on search warrant was
the "member, if not the leader, of the search party")  His claim
of judicial misconduct amounting to a denial of due process is completely
devoid of merit.

CONCLUSION

For the reasons stated, Lopez's petition for a writ of habeas corpus is
denied. A certificate of appealability will issue, limited to
petitioner's claim that he received ineffective assistance of counsel because of trial counsel's failure to investigate
and consider filing a motion to suppress the fruits of the search
warrant. As to no other issue has petitioner made a substantial showing
of the denial of a constitutional right; accordingly, a certificate of
appealability is denied as to all other issues. See
28 U.S.C. § 2253(c)(2).

SO ORDERED.

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